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alistairwye

Listed below are comments made by alistairwye between Monday, 4th May 2009 and Monday, 4th May 2009.

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Google's Street View response 05:42am on 04 May 2009 Google Street View (GSV) has been at the centre global media hype and criticism by privacy groups and lawyers alike. However it is yet to be declared illegal anywhere in the world. Most recently the UK has been enjoined to the GSV network. So far, despite a complaint by Privacy International UK, the Information Commissioner for Britain has declared GSV compliant with the provisions key statutory provisions regarding privacy otherwise known as the Data Protection Act (DPA). However the DPA is just one strand of law, which GSV comes into potential conflict with. The other strand is the common law the law made by judges in their decisions. However it seems that even under the common law of England and Wales GSV is narrowly within what is legal.

The common law of privacy is unfortunately premised upon a vaguely defined tort (a civil, not criminal wrong). Anyone trying to assert their privacy against Google would need to allege that Google misused their private information regarding any photograph of them distributed via GSV. The misuse of information is a cause of action based originally upon confidential information and relationships. However thanks to a recent win in the House of Lords by Naomi Campbell this test is now somewhat easier to apply. All that is important now is whether the information, not the relationship, was private and confidential. Hence we no longer call the action breach of confidence, but rather the misuse of private information.

So assume someone you are photographed on GSV. For you to prove Google misused your private information when it distributed photographs of you via GSV a two-stage test must be overcome. First, and most importantly, you must be able to establish a reasonable expectation of privacy. Once this is established your Article 8 right to privacy, guaranteed under the European Convention on Human Rights (ECHR), as enacted into UK law by the Human Rights Act 1998, is engaged. With this engaged the Court would then weigh up your right to privacy against Googles right to freedom of expression, enshrined in Article 10 of the ECHR. They do so in a balancing act, weighing against each other the factors in favour of each.

However it is unlikely that you would even be able to pass the first stage of the test. This is because GSV now blurs all faces automatically through new software. In all the decided cases where claimants have successfully established a reasonable expectation of privacy there has been an undeniable and overwhelming focus upon the claimant in the photograph or publication. For instance Naomi Campbell, despite being photographed in the street was the only face visible, all others being pixelated out. Moreover she was the subject of the accompanying newspaper story. Similarly when tabloids have harassed Princess Caroline von Hannover for the purpose of gossipy celebrity news stories or when the media has released images of a mans suicide attempt in public the Courts have stressed how the publication focussed upon the claimant. In the Campbell case the House of Lords made explicit reference to this fact drawing a key distinction.

They said that a persons privacy would not arise when they are photographed incidentally in a street scene where they do not form the true subject of that piece. By comparison they noted that privacy might arise where the street scene is the mere backdrop for one or more persons who constitute the true subject of the piece. Hence if Victoria Beckham is photographed in a crowd at her husbands football match where the purpose is a story about her then privacy may arise. This will not happen where the photograph was taken and published for the purpose of showing the crowd at the football game. Hence as GSVs name suggests it captures street views not individuals. It does not focus upon any one person, a fact made all the clearer now that it blurs faces automatically through updated software. Even if you remained identifiable by some other distinguishing feature, for instance a crazy hairstyle or noticeable tattoos, or if your face remained unblurred due to the fallibility of GSVs software, it seems that as GSV places no focus on you in particular. Consequently it seems you would be unable to claim against GSV.

Although this result might seem odd it has a latent rationality to it. If the apparent focus upon the claimant requirement was absent, or less important in the decided cases then where could the line be drawn regarding privacy. If the published photograph need not focus upon the claimant then the media would be severely curtailed. Crowd events and any reporting in public would be severely limited if passers-by caught unawares in the backgrounds of photographs could suddenly raise expensive privacy claims at television networks, magazines and newspapers. Hence although the law is not perfect it is a compromise of convenience. The law is rarely perfect and nearly always pragmatic: the law of privacy is no exception.

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